Shanly v Police

[2013] NZHC 1197

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-41 [2013] NZHC 1197

TONY JOSEPH SHANLY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 May 2013 and further memoranda to 13 May 2013

Appearances: Appellant in person

W Fotherby for the Respondent

Judgment:      23 May 2013

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 23 May 2013 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Parties:

Mr T J Shanly, Auckland

Mr W Fotherby, Meredith Connell, Office of the Crown Solicitor, Auckland

SHANLY V POLICE HC AK CRI-2013-404-41 [23 May 2013]

[1]      Mr Shanly has appealed against his conviction on two charges under the Road User Charges Act 1977 (the Act) that he was the owner of a truck and trailer operated on a road when the gross weight of each was more than the maximum gross weight specified in the distance licences carried.1

[2]      Although Mr Shanly’s written submissions did not clearly identify an appeal against sentence, at the conclusion of his submissions on conviction I discussed the level of the fines with him and adjourned the hearing to enable him to file a declaration of financial capacity.   This judgment therefore deals also with what amounts to an appeal against sentence.

Background facts

[3]      Mr Shanly owns a truck and trailer.  He told me that he purchased the truck and trailer from Mr Dennis Overington a few years ago.  Mr Overington continued to drive the truck from time to time.   Whether this was as an employee or on some other basis was not clear.

[4]      On 17 April 2012 Mr Overington drove the truck and trailer from Fergusson Wharf in Auckland.   He was heading for Mt Wellington.  The truck drove off the wharf into Tamaki Drive, and then along Quay Street to Hobson Street.  The truck was stopped by a police officer on Hobson Street.

[5]      The police officer believed that the load on the truck was overweight.   He was also concerned as to the fitness of the vehicle.   The truck and trailer were subsequently weighed at a certified weigh station.   The truck weight was 19.87 tonnes when the licence was for 12 tonnes, and the trailer weight was 17.82 tonnes when the licence was for 10 tonnes.

[6]      Mr Shanly was convicted following a defended hearing.2  There was evidence from two police officers confirming the matters outlined above and some other

1 Road User Charges Act 1977 ss 5(1)(b) and 23(2). The 1977 Act has since been replaced by the

Road User Charges Act 2012.

2 Police v Shanly DC Auckland CRI-2012-004-014574, 4 December 2012.

matters not in issue.  The only defence evidence was from Mr Shanly.  He did not, in substance, take issue with the fact that when the truck and trailer drove from Fergusson Wharf onto Tamaki Drive the licences for the truck and trailer were 12 tonnes and 10 tonnes respectively and that the actual weights were 19.87 tonnes and

17.82 tonnes.  Mr Shanly sought to prove, in essence, that an attempt had been made by Mr Overington when he was still on Fergusson Wharf to purchase supplementary licences for the truck and the trailer and that, although he had not managed to do this while on Fergusson Wharf, he did subsequently purchase supplementary licences. What Mr Shanly wanted to prove (as he made clear in his submissions on appeal) was that the supplementary licences had been purchased before the truck and trailer were weighed on the directions of the police officer.

The appeal against conviction: submissions

[7]      Mr Shanly argued that he had a defence under s 23(3) of the Act.   This subsection provides:

(3)       It shall be a defence in proceedings for an offence of operating a motor vehicle on a road without the appropriate distance licence or supplementary licence if the defendant proves that—

(a)       It was not possible to obtain the licence at any time during the period between the time when the need for the licence was   reasonably   foreseeable   by   the   defendant   or   any employee or agent thereof, and the time when the alleged offence was committed; and

(b)       An appropriate licence covering the distance for which the motor vehicle was on a road in contravention of this Act was obtained   for   the   motor   vehicle   forthwith   after   the commission of the alleged offence.

[8]      Mr Shanly’s argument was essentially directed to the point noted above: when the truck and trailer were weighed supplementary licences had been obtained. The matters that Mr Shanly sought to rely on were, in summary, the following: the driver, Mr Overington, knew that the loads were overweight before he drove from Fergusson Wharf; because of this Mr Overington, before he drove from the wharf, had phoned the road user charges centre to buy supplementary licences; after 15 minutes waiting on the phone he had not got through; he therefore set off; he drove onto Tamaki Drive and along Quay Street to Hobson Street where he was stopped;

before the truck and trailer were weighed at the weigh station the supplementary licences had been obtained.

Appeal against conviction : discussion

[9]      As  I also  explained  to  Mr Shanly during the  course of  the hearing,  the defence he sought to advance under s 23(3) cannot succeed.  In the first place, there was no admissible evidence of the matters Mr Shanly sought to rely on in advancing the defence.  Mr Shanly’s explanation was largely dependent upon what he said he had been told by Mr Overington, but Mr Overington did not give evidence.  This is not a case where leave could have been granted for evidence to be adduced on appeal.  Because of the absence of admissible evidence the appeal could not succeed.

[10]     In any event, Mr Shanly’s own submissions effectively acknowledged that this offence had been committed.   When the truck and trailer drove onto Tamaki Drive the licences held were not sufficient for the load.  The offence was committed at that point.  What Mr Overington may have been attempting to do while still on the wharf, and whether or not there were difficulties in getting through to the road user charges centre, might have a bearing on penalty, but this cannot have any bearing on the question whether the offence was committed.

[11]     A further difficulty from a factual point of view is that the information Mr Shanly sought to put before the Court did not demonstrate, in terms of s 23(3)(a), that it was not possible to obtain a supplementary licence before leaving the port. The fact that Mr Overington did subsequently obtain the supplementary licences demonstrates that it was possible. The information provided by Mr Shanly is that Mr Overington put through his call, when he was still on the wharf, at around 10:30 am and  that  he had  finally got  through  and  obtained  the  supplementary licence by around 11:10 am.   It may have taken more time than was acceptable to Mr Overington.  But that is a long way short of demonstrating that it was not possible.

[12]     There is a further difficulty on the question whether it was possible to obtain a supplementary licence.   This comes from evidence in the District Court that a supplementary licence could have been obtained from a facility at the port.   Mr

Shanly challenged this on the appeal, by way of submission, but the absence of a facility was not established by evidence at the hearing.

[13]     As to the reliability of the information apparently provided by Mr Overington to Mr Shanly it should also be noted that there is a reported decision of a prosecution of Mr Overington in which a similar argument by way of defence was rejected.3

[14]     For these reasons, and being reasons outlined to Mr Shanly during the course of the hearing, the appeal against conviction is dismissed.  I note that in one of the memoranda filed by Mr Shanly following the hearing he stated, in effect, that he now understood why he had committed the offences because of absolute liability.4   That was a responsible acknowledgement.

Appeal against sentence

[15]     The maximum penalty for an offence against s 23(2) is a fine of $15,000.  Mr Shanly was fined $3,000 for each of the two charges.  The sentencing notes are very brief.  The Justices said that it was “a pity” that Mr Shanly “did not learn from the first time around”.  This is an obvious reference to earlier offences of the same type, noted more fully below. The Justice of the Peace addressing Mr Shanly then said:

I am going to impose the appropriate fines and you are just going to have to sort out as best you can the method of payment.

The two fines of $3,000 were then imposed.

[16]     Following the appeal hearing Mr Shanly filed a memorandum directed to the level of the fines as well as a declaration as to financial means.  He says that when it came to sentencing he was asked by one of the Justices of the Peace if there was any reason why the fine should be reduced, but says that before he could answer the police prosecutor “objected” and told the Court about the previous convictions.  Mr

Shanly said that the Justices then “re-imposed the two infringement fines of $3,000”.

3 Overington v R HC Auckland CRI-2008-404-127, 8 July 2009 (per Allan J) at [24]-[31].

4 McLaren Transport Ltd v Ministry of Transport [1986] 2 NZLR 81 (HC); compare SM Savill Ltd v

Ministry of Transport [1986] 1 NZLR 653 (HC).

[17]     There are two broad issues relating to the fines.  The first is whether fines of

$3,000 were mandatory for each of the offences.  The second arises if the amounts of the fines were not mandatory; this is whether the fines are manifestly excessive.

[18]     A question whether the fines are mandatory was raised at the hearing by Mr Fotherby.  It arises because of the provisions of s 23(6) of the Act and Schedule 4 referred to in s 23(6).  Subsection (6) states that any offence specified in Schedule 4 as, amongst other things, an “excess weight offence” may be proceeded with as an infringement offence in accordance with the Land Transport Act 1998.   Part 1 of Schedule 4 deals with excess weight offences, which include Mr Shanly’s offence. Fixed infringement  fees  are stipulated,  ranging  from  $200  to  $10,000, with  the amount of the fee depending upon the weight by which the gross weight of the vehicle at the date of the offence exceeds the maximum gross weight specified in the licence (with a 5% allowance).   The infringement fees for Mr Shanly’s truck and trailer are $3,000 for each.

[19]     Because it had not been clear that there was an appeal by Mr Shanly against sentence as well as against conviction Mr Fotherby, understandably, was not in a position to develop a submission.   He helpfully agreed to provide a written memorandum on the question as to whether there are mandatory fines arising from Schedule 4.  He referred to a degree of uncertainty on the point in the commentary in

Brooker’s Law of Transportation.5

[20]     The Police, as the informant, elected pursuant to s 23(6) to proceed against Mr Shanly with infringement notices.  The alternative would have been to proceed summarily.6    The  infringement  offence  procedure  is  governed  by  s 21  of  the Summary  Proceedings  Act  1957.     If  Mr  Shanly  had  not  responded  to  the infringement notices the fee stipulated in part 1 of schedule 4 would have been imposed.  Because Mr Shanly did respond and requested a hearing the provisions of ss 21(8) and (9), in particular, applied.  Sub-section (9) provides:

Where a defendant is found guilty of, or pleads guilty to, an infringement offence for which an infringement notice has been issued, the Court shall

order the defendant to pay costs of the prescribed amount in addition to the fine (if any) and other costs (if any) ordered by the Court.

[21]     On the face of  it,  s 21(9) provides  that  penalty is  within  the sentencing discretion of the Court, with that discretion extending to a decision not to impose a fine as well as to the level of the fine.  The degree of uncertainty as to whether a infringement fee stipulated in schedule 4 should nevertheless be inflexibly applied as a fine appears to have arisen from a decision of the Court of Appeal in Interfreight

Ltd v Police.7    That case was concerned with an “overloading offence” under the

Transport Act 1962.  The statutory provisions relating to overloading offences and proceedings in respect of them as infringement offences are different from those applying to other offences in respect of which the infringement notice procedure can be used, including the offences in s 23 of the Act.   The statutory provisions were comprehensively  considered  by  Randerson  J  in  Carr  v  Police.8    The  Judge concluded:

[44]      …  It follows that, at least where a hearing is requested and liability is admitted, the District Court Judge does have a discretion to impose a lesser penalty than the fees prescribed in Part IV of the Second Schedule of [the Transport Act 1962] for offences against the [Road User Charges] Act.

[22]     Schedule 4 of the Act replaced the second schedule of the Transport Act

1962.  Nothing turns on this point.  The Judge referred to a defendant who requests a hearing and admits liability.  That was a case where the defendant did admit liability. I am satisfied that the fact that a defendant, as in this case, does not admit liability makes no difference to the question whether the Court has a discretion in relation to a fine.  I am satisfied that there is a discretion in such cases.  Section 21(9) is clear in this regard.

[23]     It is not clear from the brief sentencing notes whether the Justices of the Peace considered they were bound by part 1 of schedule 4.   Mr Shanly’s memorandum in fact indicates that the Justices did consider they had a discretion.  I have briefly discussed the jurisdiction issue because it is a jurisdictional issue, not because it was apparent that there was an error by the Justices.  Having concluded

that there is a full discretion the question then is whether the fines of $3,000 are manifestly excessive.

[24]     The gravity of the offences is high when assessed in relation to the extent by which the actual weights exceeded the licensed weights.  In addition, as the Justices noted, the previous offences are of significance. The circumstances of those offences are essentially the same as the circumstances of the offences now under appeal. Amongst other things the driver on the earlier occasions was Mr Overington and the same, or very similar, excuses were apparently advanced by Mr Overington.   Mr Shanly has said that he gave strict instructions to Mr Overington to ensure that supplementary licences were obtained when necessary and these instructions applied on  the  present  occasion.    However,  Mr  Overington’s  past  performance,  which actually occurred on two separate occasions, should have resulted in Mr Shanly’s taking whatever steps might have been required to ensure that it did not happen again.  But he did not.  Focussing only on those circumstances the fines of $3,000, against maximum fines of $15,000, may not be out of range.

[25]     That is an assessment of the level of the fines in relation to the circumstances of the offences and the circumstances of previous offences.   Three matters weigh against this.  The first is that the fines are very high when assessed in relation to the cost of obtaining the supplementary licence.  The second is that the person directly responsible was Mr Overington, not Mr Shanly.   The third is the mandatory consideration in s 40(1) of the Sentencing Act 2002.   This provides that, when determining the amount of a fine, “the Court must take into account, in addition to the provisions of ss 7-10, the financial capacity of the offender” (emphasis added).

[26]     Mr Shanly records in his declaration that he owns his own home with a capital value of $425,000.  In a section for recording debts and liabilities he has not recorded any loans or other debts.  However, a bank statement indicates that there is a loan from the bank, although not the amount.  The bank statement also records an overdraft in excess of $3,000. The declaration also discloses a very modest income.

[27]     I gave leave to Mr Fotherby, for the respondent, to file further submissions on the level of the fine as well on the legal point.   Mr Fotherby has advised that his

instructions are that Mr Shanly recently paid $4,000 of the fines to secure release of his truck, which had been seized.   Mr Fotherby submitted that a fine of around

$2,000 on each charge would in the respondent’s submission be appropriate.

[28]     The matter is borderline.  Assessed in terms of capacity to pay, there is no capacity to pay from income other than by instalments which, on the face of it, would have to be modest.  On the other hand, there is an apparent ability to borrow, possibly against the security of the home.   This may be the source of the $4,000. Assessing matters overall, and given the considered submission on behalf of the informant, I am satisfied that the appeal against sentence should be allowed by reducing the fines to the amount now apparently paid. This is based in large measure on financial capacity.

Result

[29]     The appeal against conviction is dismissed.

[30]   The appeal against sentence is allowed.    The fines of $3,000 on CRN12004130523 and CRN12004130525 are quashed and fines of $2,000 for each offence are substituted.

[31]     The fines of $150 on two other charges and an order to pay costs of $132.89 are affirmed.

Woodhouse J